Using Exit Interviews to Protect Trade Secrets

U.S. businesses spend billions of dollars each year to protect their trade secrets with high tech security, gadgets, and software. Exit interviews are an often overlooked but most effective means to ensure confidential information is gathered and returned — even when the parties are parting ways amicably.

Typically someone from the organization’s human resources department conducts the interview. If the resignation is voluntary, he or she should inquire about the reasons for it and about the departing employee’s plans for future employment. The employee may also be asked for observations about the company, both good and bad, and suggestions for areas of improvement.

The interviewer should also inquire about the types of confidential information to which the employee had access during his or her employment. If the employee signed a written agreement, the exit interview provides an opportunity to review and clarify post-employment obligations. These obligations always include the return of company property and confidential information. In addition, they may include the duty to keep information confidential or place a new or prospective employer on notice that confidentiality or other restrictive covenant agreement exists.

Human memory has its limitations. These can be compounded over time by turnover within the human resources department. Consequently, both the employer and the employee should have copies of all written agreements under which the employee performed his or her services. Ideally, the employee would, as part of the exit interview, sign a document to which the agreement is attached as an exhibit, indicating that he or she was aware of the agreement, understood the obligations thereunder and reaffirmed his or her obligations.

To the extent that any issues exist involving inventions that may have been created by an employee during to his or her employment with the organization, the exit interview should confirm the employee’s understanding that those innovations belong to the employer. If the employee worked on any major trade secrets or projects, the exit interview should specifically address the information to which the project provided access.

Suggested exit interview considerations:

  • Is the employee leaving on good terms? Will he or she be joining a competitor?
  • Did the employee have access to confidential information? If so, has it been returned or have efforts been made to ensure that it was not copied or removed?
  • Is it the sort of information that the employee will inevitably disclose during the course of his or her new position?
  • Is it the sort of information for which disclosure of it would be difficult to detect?
  • Does the employee understand his or her post-employment obligations?
  • What steps should be taken after the interview to ensure the employee honors his or her post-employment obligations?
  • If the employee has already failed to honor obligations to the employer with regard to confidential information or a written employment agreement, what steps should be taken to protect the company’s rights?

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